»
Agricultural Biotechnology

Advocates for the global South have been clamouring for proprietary treatment of TK, and that demand shows no sign of abating (Heald, 2003, p. 536). For the time being, potential property interests abound whenever biodiversity is exploited for commercial gain. In order to resolve the conflicting claims of the North and the South, let us return to the annals of the biodiversity battles. One set of conflicts may be considered 'pharmaceutical' in flavour the other, 'agricultural'. Let us first...

UPOV vests breeders' rights on new, distinct, uniform and stable varieties. Article 6 of UPOV deems a variety as 'new', provided that, 'at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety' (UPOV, 1991). Thus, novelty is determined solely by prior sale or disposal of the application material. Public...

Bijman, J. and Bogaardt, M.J. (2000) Agr-Evo Monograph. Netherlands Agricultural Economics Research Institute. Available at http technology.open.ac.uk cts pita AnnC4-mono-agrevo.pdf Carvalho, N.P (2000) Requiring disclosure of the origin of genetic resources and prior informed consent in the patent applications without infringing the TRIPS Agreement the problem and the solution. Washington University Journal of Law and Policy 2, 371-401. Gepts, P. (2004) Who owns biodiversity, and how should...

1 By 'inadvertent use' we mean unintended use through natural phenomena such as pollen drift or other forms of contamination through, for example, mixing of seeds in handling and conditioning facilities. Knowingly replanting a seed or a plant produced from inadvertent use (as in the case of Schmeiser) is regarded as infringement. 2 In this chapter we refer to farmers as individuals who can create new varieties but who do not necessarily patent them. Licensees or 'growers' are users of the...

For the public and non-profit agricultural research sector, any direct effects of IPRs on the overall research are difficult to measure objectively. Indirect indicators such as citations number in the thousands, but there is, in the end, only a handful of commercialized products (several of which, of course, are highly valuable). Thus a direct statistical analysis of effects of IPRs on public sector agricultural biotechnology innovation through to adoption on farmers' fields is impossible at...

Conducting an economic impact assessment of intellectual property rights (IPRs) legislation that does not directly lead to an economic output is, in some ways, a peculiar task. The peculiarities lie in determining how to attribute quantifiable economic values to IPR legislation (which will be addressed momentarily), not in the importance of the impact assessment. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO) requires all...

This section examines a firm's ex ante decision problem to apply for any form of IPRs through patents or to keep a trade secret. For the purposes of this exercise, we abstract from the differences between PVPA and utility patent property rights, but it is the differences in rules that will drive the value of IPRs with respect to trade secrets. Let there be two firms (i and j) competing in a market to produce a seed to sell to a set of farmers. The firms can choose between keeping a trade secret...

Second, and this follows on from the first issue, GURTs exemplify the way that agricultural research is more and more expensive, commercially oriented and technologically advanced. The consequence of this is that the sector is becoming one in which an ever smaller number of companies are able to enter, while those that are already in it and can compete come to dominate it. In fact, terminator may accelerate this process of corporate concentration, which is already quite noticeable,7 while...

PBRs in the USA are defined by the 1970 PVPA, whereby the US Department of Agriculture (USDA) can issue Plant Variety Protection Certificates (PVPCs). Varieties claiming a PVPC must be new and must satisfy requirements of distinctiveness, uniformity and stability. The protection offered by PVPCs is similar to that provided by patents, including the standard 20-year term, with two major qualifications there is an RE, which means that protected varieties may be used by others for research...

The recognition that inventions are typically the springboard for further innovations has long been noted in the analysis of the economics of IPRs (Scotchmer, 1991). When innovation is cumulative, the first inventor will not necessarily be compensated for his or her contribution to the social value created by the subsequent inventions, which adds another dimension to the task of designing an efficient IPR regime. Scotchmer (2oo4) distinguishes between three main types of cumulativeness of the...

Kesan and Gallo provide insights into the effect of property rights on biotechnology research through their survey of Argentinian soybean and corn farmers, who have made Argentina the world's leading producer and exporter of both crops. Their results claim that the definition and enforcement of property rights have important effects on the incentives that private firms face in the market and on the productivity of the agricultural sector, including the local incentives in Argentina for plant...

In 1993, the ABSP's initial attempts to raise awareness of IPR and biosafety issues in Egypt were met with interest, because everyone was excited about biotechnology at that time. The initial ABSP programme was designed to promote awareness of IPR and biosafety issues, including the general concepts of patent law and PVP as they affect biotechnology-based plant breeders. MSU and Stanford University pioneered an Intellectual Property Patent Internship Program in April 1993 in California and...

The model is a dynamic game with complete but imperfect information, where the players' pay-off functions are common knowledge (complete information), whereas the player with the move does not know the whole history of the game at some points in the game (imperfect information), referring to the farmer-saved seed. The game involves two participants in the contract the risk-neutral seed company (principal) and the risk-averse farmer (agent), and also represents a long-term business relationship...

In the international agricultural research community, the belief has been widespread that patents have been hindering access to important plant biotechnologies for developing countries. Talk by economists of international 'violation' of US patents indicates that their reach in the non-profit sector can extend well beyond the geographic bounds of their legal, if not their political, reality, and certainly beyond the scope of protection recognized by well-informed private firms. Such confusion is...

Although the default standard under TRIPS requires all inventions to be patented, there are several notable exceptions that are relevant to plant products. The general rule is that patent protection must be provided for all inventions that satisfy the patentability criteria of being useful, new and non-obvious (TRIPS, 1994, art. 27(1)). However, because TRIPS defines neither 'invention' nor 'new and non-obvious', countries have some discretion with regard to what qualifies as patentable,...

Both the research exemption and farmer's ability to save seed limit the IPP provided by the PVPA. Although utility patents do provide broader IPP than PVPCs do, stand-alone utility patents do not prevent seed saving because the patentee's rights are 'exhausted' after the initial sale to the farmer. The exhaustion doctrine only applies to an unconditional sale or licence of a patented article (B. Braun Medical, Inc. v Abbott Laboratories, 1997). In a conditional transaction, the court will infer...

Pressures for strengthening US patent law and expanding its scope began in the 1970s and originated outside of agriculture. They arose from the concern of business interests with capturing rents on existing technology, as distinct from creation of new incentives for innovation. They reflected the pessimistic perception that the USA had lost its technological edge in the 19 70s to other countries such as Japan, and that these countries were insufficiently compensating the USA for past...

The Specialty Crops Regulatory Initiative, launched in November 2004, is a collaborative effort to establish an organization to facilitate, and reduce the cost of, the regulatory approval of biotechnology-derived specialty crops.18 This initiative seeks to play a role in this area similar to that of the IR-4 Project of the USDA to facilitate approval of pesticides for small crops, and the Orphan Drug Act to encourage the development of new drugs for diseases with small markets. Economists have...

Has the emergence of a knowledge economy - a knowledge-based (UNDP, 1999) or knowledge-driven economy (DTI, 1998) - fundamentally redefined a nations' trade interests Or are such terms, with 'new economy', a fading imprint of the dot-com era, a high-water mark of a tide, now receding, of technological optimism and exceptionalism It may, in any event, be impossible to intelligibly isolate a knowledge economy as such. The enticing idea that a fresh set of economic rules now governs...

Individual cases of disputed biopiracy have helped structure and define this debate, and give impetus to broader claims of misappropriation they may also provide insights on possible policy responses. A prominent case is the development of cross-bred rice suitable for production in the western hemisphere and design to imitate the organoleptic and cooking characteristics of traditional basmati rice, which was the subject of a controversial patent.4 Apart from its potent actual influence in the...

The debate over the protection of GIs accordingly spans the same conceptual gap between fair appropriation or emulation and misappropriation or usurpation, and is also influenced by a mix of cultural and value differences, and divergent trade interests. GIs are defined in TRIPS as a form of IP, but are not defined and need not be protected as distinct property rights. Therefore, the array of laws used to protect them ranges from specific laws on appellations or designations, over trademark law...

Another possibility is to utilize forums outside the WTO either alone, or in conjunction with continued discussion under the WTO. The need to protect CBD goals, as well as the right to food, has already been discussed in a number of forums outside of the WTO. In addition, a few authors have specifically discussed the present or potential utility of raising these issues in multiple forums to take advantage of different political constituencies and processes for negotiation (Cullet, 2004, pp. 2...

The introduction of PBRs was meant to reduce one of the barriers to international trade in agriculture by opening up developing country markets to hybrids. PBRs, by increasing agricultural investments, can result in high-yielding, newer hybrid varieties or genetically modified plant varieties, otherwise generally unavailable in developing nations. Hybrid varieties have the capacity to eliminate traditional deficiencies in agriculture that induce an element of unpredictability in farming by...

Developing nations underscored several factors necessitating a national regime for PVP rather than adopting a system similar to the protection prevalent in developed nations. First, in developing nations agriculture has a close nexus with the national economy. Compared with developed nations, the agricultural population is higher in developing nations. For example, the Food and Agriculture Organization (FAO) estimates the agricultural population for 2000 in developed nations at 99,752,000...

In the middle of IPR negotiations, due to a fear and concern of a possible trade blockade with EU, Egypt decided not to pursue the commercialization of Bt potatoes. The issue is partly based on a concern that even if Egypt tried to keep export shipments free from GM potatoes, some would slip through part of the issue also appears to be a general stance by EU against agricultural biotechnology. The EU has brought considerable pressure to bear on developing countries, particularly African...

The balance of IP rights against other norms under TRIPS-plus agreements is of potentially much greater concern than present conflicts between TRIPS and other international agreements. These agreements tend to be bilateral or regional, negotiated by an industrialized country, such as the USA or EU and require more protection than TRIPS, or adherence to TRIPS under a faster timeline. The increased rights generally coincide with a reduced opportunity to accommodate other social policy norms, such...

Dutfield suggests that not all transgenic technologies will help farmers in developing countries. He examines the implications of GURTs for developing countries, particularly 'terminator technology', a patented and highly controversial method of controlling gene expression in plants that render harvested crop seeds sterile, and discusses its advantages and disadvantages. He argues that an expensive terminator-protected seed might make farming even riskier for the poor by preventing local...

The model of REs that we want to construct is related to the second strand in the literature previously discussed. In particular, we want to construct a simple model of innovation that captures some salient features of plant breeding. Plant breeding is a lengthy and risky endeavour that consists of 'developing new varieties through the creation of new genetic diversity by the reassembling of existing diversity' (International Seed Federation, 2003). Thus, the process is both sequential and...

Developed nations acknowledge that art. 27.3 of TRIPS provides a choice between patenting and a sui generis system for protecting plants. Developed nations, however, construe UPOV as a minimum standard for establishing a sui generis system (Grain, 1999 UPOV Position, 2000). The following two sections discuss whether the reference to an effective sui generis system in art. 27.3 of TRIPS is a reference to UPOV. The first section argues that historically UPOV was never construed as the minimum...

This section argues that even if PBRs fulfil promised expectations, they can neither benefit the developing nations nor reduce distortions in international trade in goods as long as agricultural subsidies foreclose the markets for the developing country produce. Instead, the prevalence of subsidies will result in subjecting farmers to additional costs without any benefits. The reduction of subsidies, which create the maximum international trade barriers in agriculture, should precede the...

Immediately after the 1900 rediscovery of Mendel's insights into the rules of heredity, scientists sought to apply them to crop improvement. One early breakthrough was the development of 'pure lines' of self-pollinating crops. Pure lines breed true to type and contain consistent and identifiable traits that can be transferred to other plants. According to Pistorius and van Wijk (1999, p. 36) 'while Mendelian breeding allowed for a controlled mixing of genetic characteristics, pure line breeding...

As discussed earlier, there is a legal uncertainty of whether only asexually reproducible plant varieties are protected under the Korean Patent Act. Figure 19.2 shows that the number of applications for sexually reproduced plant-related invention under the Patent Act has decreased very sharply since 2000. On the contrary, the number of applications for plant varieties by the SIA has increased since 2000 (Fig. 19.3). It seems that seed-related innovators have shifted from the patent system to...

This agreement enhances the problem inherent in simultaneously respecting TRIPS, as well as rights recognized under the UNDHR and CBD. For example, farmers have traditionally saved harvested seed to use in subsequent crops, as well as to engage in experimental breeding - both of which foster the right to food. However, under UPOV 1991, the farmer's rights to save seed and experimentally breed plants are both restricted. Although there is a possibility for farmers to save seed, it is limited by...

Since it has substance and influence, the conception of a 'new economy' or a 'knowledge economy' brings a fresh array of redefined interests to bear on the positions taken in trade negotiations, and induces a demand for new legal and ethical standards, most strikingly in revisiting the conventional notion of the public domain or the common heritage. Alongside, and influenced by, traditional factor endowments, economic interests are increasingly structured, construed and calculated in terms of...

The innovation effects of changes in IP market strength and structure are best examined through the impacts of these changes on IP owners' net revenues and IP users' net costs. Owners' net revenues are their nominal contract revenues minus contract enforcement costs. Users' net costs are their nominal contract costs plus the product of their conditional contract compliance costs (i.e. assuming technology use is detected) and the probability that the use will be detected. Nominal contract...

Trade negotiations over knowledge resource issues are marked by diversity and divergence in principles and values in cultural and ethical perspectives, in policy objectives and in trade and property interests, as well as negotiating asymmetries and the impact of technological development. These factors help shape the contested interaction between the regimes that govern custodianship and sovereignty over GR and the regulation of the access to, use of, and sharing of, benefits from GR and...

GMOs have been regulated by the EU since the beginning of the 1990s. The EU directive on the contained use of GMOs (Directive 9 0 219 EEC) and on their deliberate release (Directive 90 220 EEC) were the first regulations which tried to establish a system for controlling research and development (R&amp D) and commercialization of GMOs in the EU. These regulations were designed to protect citizens' health and the environment, and addressed authorization, labelling and trace-ability issues...

The ABIP database was developed jointly by researchers at the USDA ERS and the Rutgers University Department of Agricultural, Food and Resource Economics. It assembles data on several different types of IPRs US utility patents, plant patents, PVPCs and results of field trials for deregulatory release of genetically engineered varieties. There are several reasons to bring together these different types of intangible assets. First, the different types of IPRs reflect success at different stages...

The question of overlapping patent and PVPA protection in turn implicates the licensing of patented plant varieties. The jurisprudence of utility patent licensing for plants could closely parallel the employment of GURTs and GURTs-enabled licences for plants, either because the technological protection confers exclusivity analogous to patent protection, or because the GURT itself is patented, and tampering with it may trigger patent liability. Patent rights are extensive, but they are not...

A US patent document must provide a description of the patented invention that is adequate to enable a person of ordinary skill in the art to make and use the claimed invention 35 U.S.C. 112, 1st . The enablement requirement seeks to ensure that patentees provide high-quality teachings that correlate in scope with the scope of the potentially valuable patent rights that they receive as such, enablement is an essential part of the quid pro quo of the patent system in re Wright, Enzo Biochem,...

In addition to the tension under TRIPS itself, it has been criticized for conflicting with the ability of member states to fulfil other international agreements. The United Nations UN has taken an active role not only in advocating a conflict between the realization of human rights and TRIPS requirements, but also suggesting that human rights should be given primacy in any conflict UN SubCommission, 2000 UN Draft Resolution, 2001 UN High Commissioner's Expert Group, 2002 . Similarly, the CBD...